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Does this equate to employment or a trade?

Does this equate to employment or a trade?

A potential client has just approached me and thinking about the circumstances I fear that they could be in some difficulty.

To summarise the situation. Up until Nov 2011 they were working for an agency providing basic healthcare services to a Husband and Wife. From Dec 2011 the couple paid my client directly for the same services. She attends to their needs throughout the day twice at mealtimes and once at bedtime. She does not live in, driving a short 3 mile journey to their home. She buys her own cleaning materials and cloths. Minimal expenditure. They are her only clients.

My query is then does this constitute a trade or is she not "employed" by the Husband and Wife?

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08th May 2012 09:24

The important question

is who pays for cover if the carer is on holiday or sick or days off

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08th May 2012 10:19

Does the agency know this?

Sorry to introduce another potential complication, but...

Don't agencies invariably have clauses in the contract prohibiting this kind of thing?

Either your client or the couple or both may be in breach of their contract with the agency. Where an agency worker goes on to contract directly with the client there would typically be an introductory fee paid by the client to the agency for the placement, similar to that paid for an agency that locates a permanent employee for a client.

I guess if the agency never finds out, or their contract doesn't contain any reference to this concept, or if indeed they've already been paid for the introduction the point is moot.

To answer the original question:

To me, as a gut reaction, this sounds like employment. I am aware of a large number of people with care needs who employ their carer. One reason why people with care needs use agencies is so that they can have a client/supplier relationship with the agent rather than the complication of directly employing a carer with the attendant HMRC reporting requirements.

If the carer organises a replacement at her own expense on days when she can't turn up for whatever reason then that might be a pointer towards being a supplier rather than employee however.

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Justin Bryant
08th May 2012 12:40

Good point on substitution....

TomMcClelland wrote:

If the carer organises a replacement at her own expense on days when she can't turn up for whatever reason then that might be a pointer towards being a supplier rather than employee however.

As Tom quite rightly points out if the contract between the career and those being cared for contains a right to send a substitute carer during periods of absence then provided there are no substantial conditions attached to this substitute worker undertaking the role for this period then this is strongly indicative of self-employment.

Even better if has actually been exercised.

 

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08th May 2012 10:38

Thanks

To Tom - Breach of Contract

That issue with the Agency is not one I had considered directly, I thought the likeliest result would be the Agency declaring on its p35 employees in the year and then the Revenue matching that with the clients' self employed status and go forward from there.

 

To the Innkeeper

Thanks not a criteria I had considered and I will go back and seek clarification.

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